What to Do When a Loved One Lacks Mental Capacity for Estate Planning

Estate planning is crucial to preserving wealth for future generations, and ensuring assets are distributed as the testator sees fit. Throughout the course of one’s life, they may change or update their estate plans to fit new circumstances.

Creating an estate plan requires proper “testamentary capacity,” or the cognitive ability to understand what’s happening. When a testator does not have the appropriate mental capacity, potential beneficiaries may contest the estate plan. This can lead to protracted probate battles.

What can you do if a loved one lacks or lacked mental capacity for estate planning? James Bart Leonardi, LLC can help.

What is testamentary capacity?

Testamentary capacity in Ohio has four elements, according to Niemes v. Niemes, a 1917 Ohio case.

“Testamentary capacity exists when the testator has sufficient mind to:

  • understand the nature of the business in which he is engaged;
  • comprehend generally the nature and extent of the property which constitutes his estate;
  • hold in his mind the names and identity of those who have natural claims on his bounty; and
  • appreciate his relation to the members of his family.”

In short, as long as a testator understands what they’re doing, why, to whom they’re related and the nature of what they own, they have testamentary capacity. The mental condition of the testator at the time of making the will is the determinative factor.

Even if you think an estate planning decision is delusional, the probate court may not agree. While age, neurodegenerative diseases, cognitive decline and other factors can certainly affect estate planning, these issues may not invalidate a will on the basis of mental capacity.

What to do when a loved one lacks mental capacity

Generally, it’s best to avoid getting too involved in another’s estate planning: this can lead to undue influence claims. However, there are a couple things you can do to help.

First, make sure the testator sees James Bart Leonardi, LLC for their estate planning needs. A lawyer is in a better position to evaluate testamentary capacity, if the issue arises.

If lack of testamentary capacity is discovered after the person’s death, our probate attorneys can explain your options. In some cases, an earlier version of the will may be valid.

The best way to determine the right course of action is to call James Bart Leonardi, LLC today. Our team is standing by to explain your legal options and take decisive action.

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